Fisherville ERT: In the Land of All Day Breakfast

by Harvey Wrightman
Make no mistake about it, from the beginning, this has been a rural/urban issue – and I don’t say that with pleasure, nor do I believe that once the issue is properly explained, most people, no matter where they live, are reasonable and sympathetic to the plight of those condemned to live in wind projects. Sitting at the Environmental Review Tribunal hearing in the Fisherville Community Centre, I look at the lawyers for the MOE/Capital Power, all seated in an orderly row, and in my boredom dream that they are there to try and comfort us – rural residents, both those in projects and the rest of us sitting on death row waiting to step into the torture chamber; or rather, the chamber comes to us – like one of those mobile x-ray trailers sent out to the hinterland. Well clearly, there is no milk of human kindness to be had here today.

The bulk of the day is taken up with arguments about the medical evidence:

  1. how much is enough
  2. who has been the foot-dragger in this hearing
  3. what to do with these “post turbine” witnesses who refuse to withdraw and indeed keep showing up at the hearings – irritating reminders of the human aspect of the “wind projects.”

This last one is clearly taking its toll on the MOE and the wind companies. Though they sit side by each at the table, they have no supporters in the audience (I have yet to see even one “lessor” attend.) They don’t even lunch together anymore. They do still confer openly with each other, but think of the “stress” they are enduring .

So, in their presentations I note that no more do they extoll the virtues of free, carbon-less wind energy. No, instead the cry is, The REA process is a STATUTORY process , “streamlined” so that the appeal decision is announced within the 6 month expiration date.

With that in mind, the ball of blame was batted back and forth by each side as to who was holding up the process, none of the parties blaming the ERT panel, but all hoping for some sort of definition to the amorphous blob of “relevant medical records” that still remains undecided – so undecided that one chairperson asked Haldminand Wind Concerns lawyer, Eric Gillespie, “How can we decide what is relevant medical evidence before seeing the case presented?” – add in the ridiculous 6-month deadline and this truly is a Catch-22 situation. At least the panel member gave voice to the issue.

As Eric pointed out, the appellant, Haldimand Wind Concerns, has been consistent in all three cases it has presented, with the core of the case being the presentation of the post-turbine witnesses and the expert opinion given about their testimony – simple enough don’tcha think?

Eric’s suggested that the “interrogatories” (remember those 176 questions from Freddy) might provide a way forward if they were filtered through a review process similar to what is done in court – a judicial “master” hears the arguments about the possible questions to use and ultimately adjudicates where the parties cannot agree. In this way more information would be presented for expert review and report without the very time-consuming and costly procedure of seeking 10 years’ worth of medical records – as Eric pointed out, in the case of 1 witness, that would involve some 20 doctors in about as many cities/towns – a very real logistical problem, not even considering the costs involved. Repeat 20 times and you have utter chaos Well, Mr. Adamson, the MOE lawyer here, had no concern for these arguments. Instead that HWC could “narrow the scope” of its witness list, perhaps down to the 6 witnesses who said they had the ‘resources’ to get the records.

Mr. Adamson chafed at the very idea of the individual post-turbine witness testimony saying that,”…they (post-turbine witnesses) should not be allowed to testify about their medical issues.”

The arguments reflect an “archaic-modernist” view that the peasants are in the way – they don’t deserve even the semblance of judicial fairness if they cannot afford the demands put upon them. Clear Creek resident, and witness, Stephana Johnston was seated beside me. A tear came to her eye when he said this.

Mr. Adamson was incredulous that Eric would suggest using the interrogatories at this point , claiming that he knew nothing about them – apparently not reading or conferring with Freddy about the idea. As Eric noted, that the MOE has NOT had a consistent approach to the medical records issue. They put forth 3 different approaches. How does an appellant prepare for a case? Which information set is in vogue today?

Mr. Adamson further admonished that the appellant should have “anticipated” the medical records request even prior to the approval of the project. In response, Eric read from the Middlesex Lambton Wind Action Group Feb.6 ERT decision on the of the public’s need to prepare beforehand :

“Members of the public making comments on a proposal do not see themselves necessarily as “potential appellants” and, given the short time period in which they have to make comments, it would be unfair to require them to marshal all their appeal “evidence” at that stage.”

I can’t characterize the MOE approach to the health issues as “clinical”. It’s more like forensic. The MOE prefers to look at the health issues in an “aggregate” way; and like the wind industry, whether it’s birds, bats, plants, or humans, aggregate harm to populations is all that matters. In the way that any one project may harm/harass/kill eagles for example, so may it “take” (the American plain language term) a certain percentage of the human population for the “greater good” of us all. Kind of like the fascist way of administering justice/punishment – hanging an innocent person is just as effective as hanging a guilty one – in terms of deterrence. And isn’t that what this government offers – Deterrence masked as Mitigation?

Capital Power’s lawyer, Mr. Chamberlain, was relatively brief in his comments and submissions, tending to emphasize the extreme hardship any delay of the timeline would entail for the wind company:

  1. Deposits to Hydro One for future hook-ups were some $20,000,000, so he said –whether they were refundable or not wasn’t clear.
  2. Deposits to turbine suppliers to reserve units were $$$millions with further penalties for any disruption in delivery
  3. Any delay in the on-line date in the OPA contract would trigger penalties of $26,000/day
  4. Outside suppliers of the required 30% Ontario content were at risk – “species at risk” so to speak, and the multitudes of jobs so provided by these companies who literally could operate out of a big tent to house their single-purpose assembly lines.

It’s easy to give up on the whole process and declare, “…the fix is in.” There is some glimmer of hope here. The panel must now adjudicate what the parties cannot agree upon – the exact nature of “relevant medical records.” We’ll have that decision very soon.

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Posted on October 4, 2012, in Environment, Environmental Review Tribunal, Health, Ministry of Environment, Take it to court and tagged , , . Bookmark the permalink. Leave a comment.

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